United States v. William Askew, III

666 F. App'x 316
CourtCourt of Appeals for the Fourth Circuit
DecidedDecember 20, 2016
Docket16-4048
StatusUnpublished

This text of 666 F. App'x 316 (United States v. William Askew, III) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. William Askew, III, 666 F. App'x 316 (4th Cir. 2016).

Opinion

Affirmed by unpublished per curiam opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

A jury convicted William Eldridge Askew, III, of conspiring to possess with intent to distribute 100 grams or more of heroin, 21 .U.S.C. § 846 (2012), and aiding and abetting possession with intent to distribute heroin, 21 U.S.C. § 841(a)(1) (2012). On appeal, Askew challenges the sufficiency of the evidence, two evidentiary rulings, and his designation as a career offender. Finding no reversible error, we affirm.

I.

“[W]e review de novo a district court’s denial of a motion for judgment of acquittal.” United States v. Fuertes, 805 F.3d 485, 501-02 (4th Cir. 2015), cert. denied, — U.S. -, 136 S.Ct. 1220, 194 L.Ed.2d 221 (2016). In assessing evidentia-ry sufficiency, we determine whether substantial evidence supports the conviction when viewed in the light most favorable to the Government. United States v. Engle, 676 F.3d 405, 419 (4th Cir. 2012). “Substantial evidence is evidence that a reasonable finder of fact could accept as adequate and sufficient to support a conclusion of guilt beyond a reasonable doubt.” Id. “To prove [a 21 U.S.C. § 846] conspiracy, the government must demonstrate beyond a reasonable doubt (1) an agreement between two or more persons to engage in conduct that violates a federal drug law, (2) the defendant’s knowledge of the conspiracy, and (3) the defendant’s knowing and voluntary participation in the conspir *319 acy.” United States v. Gomez-Jimenez, 750 F.3d 370, 378 (4th Cir. 2014).

Askew contends that the Government failed to establish that Askew knowingly and voluntarily conspired to distribute heroin or that 100 grams or more of heroin were attributable to Askew, highlighting his codefendant’s trial testimony that Askew had no “say-so” in the drug deal and that the Government failed to introduce 100 grams of heroin into evidence. We conclude, however, that sufficient evidence supports Askew’s conspiracy conviction. Askew’s codefendant, who pled guilty prior to trial, testified that Askew participated in the heroin distribution by allowing heroin to be hidden in Askew’s hotel room and occasionally delivering the heroin to the codefendant. While the codefendant did testify that Askew had no “say-so” regarding the heroin deal in Detroit, Askew admitted to law enforcement that his role in that deal was to package the heroin. Furthermore, while less than 100 grams of heroin was purchased in Detroit, the codefendant testified that the agreement was to receive 100 grams of heroin. See United States v. Shabani, 513 U.S. 10, 16, 115 S.Ct. 382, 130 L.Ed.2d 225 (1994) (noting that overt act is not required to establish drug conspiracy, as “the criminal agreement itself is the actus reus”).

Askew’s possession conviction required proof of “(1) possession of a narcotic controlled substance; (2) knowledge of the possession; and (3) the intent to distribute.” United States v. Collins, 412 F.3d 515, 519 (4th Cir. 2005). Possession may be actual or constructive; “[cjonstructive possession may be proved by demonstrating that the defendant exercised, or had the power to exercise, dominion and control over the item.” United States v. Burgos, 94 F.3d 849, 873 (4th Cir. 1996) (en banc). “The same evidence establishing a defendant’s participation in a conspiracy may support a conclusion that a defendant participated in the principal’s unlawful intent to possess and distribute drugs, thereby proving guilt of aiding and abetting as well.” Gomez-Jimenez, 750 F.3d at 378 (internal quotation marks omitted).

Askew argues that insufficient evidence supports his possession conviction because the Government failed to prove he knowingly possessed the heroin and offered an inadequate chain of custody to establish that the heroin introduced into evidence was the heroin recovered by law enforcement. We conclude otherwise. Askew’s statement to law enforcement demonstrates that he knew the vehicle contained heroin and he was planning to assist his codefendant in packaging that heroin for sale. Askew was driving the vehicle at the time of the traffic stop and his codefen-dant testified that Askew placed the heroin in the bag where law enforcement found it. Accordingly, we find sufficient evidence supports Askew’s convictions.

II.

Askew next contends that two evidentia-ry rulings require a new trial. We review a district court’s evidentiary rulings for abuse of discretion. United States v. Faulls, 821 F.3d 502, 508 (4th Cir. 2016). Reversal is warranted only if the district court’s determination “was arbitrary or irrational.” Id. (internal quotation marks omitted). Moreover, we review evidentiary rulings for harmless error, which requires us to determine “with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error.” United States v. Cloud, 680 F.3d 396, 401 (4th Cir. 2012) (internal quotation marks omitted).

*320 Askew first claims that the- district court erred in allowing law enforcement officers to testify that when individuals exit a vehicle during a traffic stop they are trying to separate themselves from the contents of the vehicle, that the packaging material found in the vehicle is commonly used to package heroin, and that people who spend 11 hours in a vehicle together would discuss the purpose of their trip. Askew argues that this testimony was based on the officers’ training and experience, and thus was not lay opinion testimony under Fed. R. Evid. 701, but rather expert testimony under Fed. R¡ Evid. 702. The Government responds that any error was harmless.

We agree with the Government. Askew’s codefendants testified that the materials found in the vehicle were to be used to package the heroin. A jury could have inferred, without the disputed testimony, that passengers would discuss the purpose of their trip. Moreover, Askew admitted in his statement to law enforcement that he knew heroin was in the vehicle, a fact further supported by the Government’s witnesses. Therefore, any error in admitting the officers’ testimony was harmless.

Askew next alleges that the district court erred in admitting evidence that he met his codefendant while both were incarcerated.

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Related

United States v. Shabani
513 U.S. 10 (Supreme Court, 1994)
United States v. Shawn Engle
676 F.3d 405 (Fourth Circuit, 2012)
United States v. Warren Collins
412 F.3d 515 (Fourth Circuit, 2005)
United States v. Cloud
680 F.3d 396 (Fourth Circuit, 2012)
United States v. Okechukwo Otuya
720 F.3d 183 (Fourth Circuit, 2013)
United States v. Fabian Montes-Flores
736 F.3d 357 (Fourth Circuit, 2013)
United States v. Erasto Gomez-Jimenez
750 F.3d 370 (Fourth Circuit, 2014)
United States v. Kevin Fuertes
805 F.3d 485 (Fourth Circuit, 2015)
United States v. Thomas Faulls, Sr.
821 F.3d 502 (Fourth Circuit, 2016)
United States v. Kennedy
32 F.3d 876 (Fourth Circuit, 1994)

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Bluebook (online)
666 F. App'x 316, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-william-askew-iii-ca4-2016.